MURDER IN CALIFORNIA

THE CASE OF PETER MCWILLIAMS (1949-2000).

Ushering in outbreaks of hysteria, Peter McWilliams, best-selling author and
medical-marijuana activist, died on Wednesday. Some -- mostly
libertarians -- are freely tossing around the word "murder" to describe the
federal government's role in the 50-year-old McWilliams' passing. "What the
federal government did is nothing less than cold-blooded, premeditated
murder," charged Steve Dasbach, the national director of the Libertarian
Party.

Before we consign such talk to the Vince Foster lunatic fringe, perhaps some
background would be appropriate. Unless otherwise noted, the quotes that
follow are selected from three columns on the deceased crusader by the
hardly hysterical William F. Buckley Jr.

"For his illness [AIDS and cancer] he smokes every day. But after you do
that for a few weeks you cease to get high. Marijuana becomes just something
that stops nausea, eases pain, reduces interocular pressure, relaxes
muscles, and takes the "bottom" out of a depression. So where do we go from
here? To jail?"

Exactly.

"Six thirty in the morning, nine DEA agents crash into McWilliams' house
finding him at work on his computer. They simultaneously tell him he is not
under arrest and handcuff him. They spend three hours going over every piece
of paper in his house (they find one ounce of marijuana, which is within the
California legal limit) and walk away with his computer. That is the
equivalent of entering the New York Times and walking away with the printing
machinery."

How is this possible, given that California's Proposition 215 exempted
patients from criminal penalties for the cultivation or possession of
marijuana? "The feds take the position that the California proposition is
after all overridden by federal legislation."

McWilliams is arrested and charged. "The U.S. attorney in Los Angeles
intends to recommend that McWilliams spend the next 10 years in jail for
violating federal drug laws.... The meltdown is therefore now scheduled.... One
hopes that Peter McWilliams, something of a bird of paradise, is left alone
to take proper care of himself."

Sadly, this proved to be wishful thinking. The judge prohibited McWilliams
from mentioning that he had AIDS and cancer, thus denying him the
traditional common law defense that necessity, the need to prevent greater
harm, forced him to break the law. This despite the U.S. Ninth Circuit Court
of Appeals's unanimous ruling in 1999 that "medical necessity" can be a
viable defense for people accused of breaking federal marijuana laws. One
would think such a ruling would apply to McWilliams, who suffers from a not
uncommon side-effect of anti-viral AIDS drugs: nausea. Without marijuana,
McWilliams simply couldn't keep his meds down.

The judge further prohibited McWilliams from mentioning Proposition 215, for
this was a federal case. Facing the prospect of a ten-year mandatory minimum
sentence, and no plausible defense, McWilliams pled guilty. Bail was set at
$250,000 and McWilliams's mother mortgaged the family home.

"One aspect of the bail regulation would have pleased George Orwell: He has
to submit to a daily urine test to establish that he has not taken
marijuana. If such a test were to prove positive, back he'd go to jail, and
the family house, presumably, to the auction block." According to
McWilliams, "The Federal prosecutor personally called my mother to tell her
that if I was found with even a trace of medical marijuana, her house would
be taken away."

And so, the meltdown. Fearing foreclosure on his mother's house, McWilliams
stopped taking the marijuana that controlled his nausea. He was found in his
bathroom, having choked on his own vomit. One might say that this is no more
a murder than a plane crash, which can be blamed on the airline or the FAA.
But there's the crucial difference of intent. Here, the prosecutors
knowingly prevented McWilliams from taking the medication -- marijuana --
that he claimed was saving his life. Perhaps they didn't believe him, and
perhaps they didn't know any better, but these are the arguments of a
defendant arguing that he is only guilty of manslaughter in the second
degree.

Look in the papers tomorrow for more wisdom on the subject from Mr. Buckley.